EVRM-Hof veroordeelt Turkije wegens mishandeling van een Koerd door de politie (en)

The European Court of Human Rights has today notified in writing a judgment [1] in the case of Dizman v. Turkey (application no. 27309/95).

The Court held unanimously:

• - 

  that there had been a violation of Article 38 (obligation to furnish necessary facilities for the examination of the case) of the European Convention on Human Rights;
• - 

  unanimously, that there had been no violation of Article 2 (right to life) of the Convention;
• - 

  that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment or punishment);
• - 

  that there had been a violation of Article 13 (right to an effective remedy).

Under Article 41 (just satisfaction), the Court awarded the applicant 5,000 euros (EUR) for pecuniary damage and EUR 15,000 for non-pecuniary damage and EUR 8,000 for costs and expenses. (The judgment is available only in English.)

• 1. 

  Principal facts

The applicant, Ahmet Dizman, is a Turkish national who was born in 1969 and lives in Seyhan (Turkey).

The facts surrounding the events of 5 October 1994 were disputed by the parties.

On 5 October 1994, the day after the applicant had attended the funeral of two members of HADEP (Halkın Demokrasi Partisi, People's Democracy Party), a pro-Kurdish political party, he was approached by two armed policemen from the Adana anti-terrorism branch while he was sitting in a café. He was taken to a car where there were two more officers. The applicant's elder brother was told that he was being taken away for questioning and that he would be returned to the café.

The applicant was then driven to a deserted field where the police officers punched and kicked him and beat him with the butts of their guns. He was questioned about a number of local people including shopkeepers, who were allegedly selling a pro-Kurdish newspaper. He was threatened that if he did not provide the police regularly with information about the shopkeepers' activities, he would be killed.

When the applicant got home, his relatives took him to hospital where it was established that his jaw bone had been broken and required surgery.

On 7 October 1994 the applicant asked the Adana Prosecutor to initiate criminal proceedings against the four police officers who had ill-treated him. He also requested a medical report which he obtained that day.

The report confirmed that the applicant's left jawbone had been broken and that the fracture would prevent the applicant from working for 25 days.

The Adana Administrative Council found that there was insufficient evidence to open an investigation on the ground that the applicant, who claimed to have been ill-treated on 5 October 1994, had not asked for a medical report until 7 October 1994.

In December 1994 the Adana Police Disciplinary Board decided not to impose any disciplinary measures on the police officers.

In May 1996 the Council of State held that the four police officers should be tried before the Adana Criminal Court of First Instance as the medical report proved that they had ill-treated the applicant as he alleged.

Noting that the defendants had vehemently denied the allegations against them and taking into account the fact that the medical report was issued two days after the alleged events, the trial court concluded in December 1997 that there was insufficient evidence to prove that the applicant's injury had been caused by the defendants, and acquitted them.

• 2. 

  Procedure and composition of the Court

The application was lodged with the European Commission of Human Rights on 31 March 1995 and transmitted to the Court on 1 November 1998. It was declared admissible on 18 January 2000.

Judgment was given by a Chamber of seven judges, composed as follows:

Jean-Paul Costa (French), President,

András Baka (Hungarian),

Riza Türmen (Turkish),

Karel Jungwiert (Czech),

Mindia Ugrekhelidze (Georgian),

Antonella Mularoni (San Marinese),

Elisabet Fura-Sandström (Swedish), judges,

and also Sally Dollé, Section Registrar.

• 3. 

  Summary of the judgment [2]

Complaints

The applicant complained, under Articles 2, 3, 5 (right to liberty and security), 6 (right to a fair trial), 13 and 14 (prohibition of discrimination), that he had been taken to an isolated place by four plain-clothes police officers and subjected to inhuman and degrading treatment.

Decision of the Court

The Court's evaluation of the facts

The Court noted that the applicant alleged that he had been taken to an isolated place and beaten by four police officers with the result that his jaw had been broken. The Turkish Government denied that the applicant had been beaten by police officers, but not that they had taken him to an isolated place.

The Court was particularly struck by the fact that two of the defendants were excused from appearing before the trial court and that the applicant had not been given an adequate opportunity to put forward his allegations during the trial. Furthermore it seemed that the denials of the defendants were sufficient for the trial court to acquit them and that no weight was given to the applicant's and his brother's statements, which were given both before the police and during the trial. The Court did not find the testimonies of the police officers to be conclusive evidence capable of disproving the applicant's allegations.

The Court observed that the Council of State, which had in its possession the investigation file, was able to establish in its decision of May 1996 that the applicant had been ill-treated by the four police officers as alleged. The Court had not been provided with any argument to doubt the accuracy of the conclusion reached by the Council of State.

In its decision of acquittal, the trial court relied heavily on the date of the medical report drawn up by the Forensic Medicine Directorate. The Court observed that at no stage did the Government dispute the applicant's submission that he had been taken to a hospital by his family on 5 October 1994 or that he had been provided with X-rays at that hospital which were handed over to the prosecutor on 6 October 1994. Neither did it appear that the Government, or any other domestic authority, contacted the hospital where the applicant claimed to have been examined, to verify the accuracy of the applicant's statement.

In the light of the foregoing, and having particular regard to the Government's failure to submit to the Court relevant documents and information, the Court concluded that the applicant was subjected to ill-treatment by police officers on 5 October 1994 and that, as a result of that beating, his jaw was broken.

Article 38 § 1(a)

The Court noted with concern a number of matters relating to the Government's response to the Commission's and subsequently the Court's requests for documents and information. It found that not only did the Government fail to respond on time to those requests but they often failed to respond at all. The existence of potentially important documents only came to light from references made to them in documents in the Court's possession.

Since they had not advanced any explanation for those delays and omissions, the Court found that it could draw inferences from the Government's conduct. Noting the importance of a Government's co-operation in Convention proceedings the Court found that the Turkish Government had fallen short of their obligations under Article 38 § 1 (a) to furnish all necessary facilities to the Commission and the Court in their task of establishing the facts.

Article 2

The Court was not persuaded that the applicant's allegations were of such a nature or degree as to constitute a breach of Article 2 and held unanimously that there had been no violation.

Article 3

The Court recalled that it had found it established that the applicant was beaten up by police officers and that, as a result of that beating, his jaw was broken. It considered that such treatment reached the threshold of inhuman and degrading treatment and therefore held that there had been a violation of Article 3.

Article 5

Having regard to its findings under Articles 3 and 13, the Court did not find it necessary, in the circumstances, to determine whether there had been a breach of Article 5.

Article 13

On the basis of the evidence adduced, the Court found that Turkey was responsible under Article 3 for ill-treatment of the applicant. The authorities therefore had an obligation to carry out an effective investigation into the circumstances in which the applicant had sustained his injuries.

The Court agreed with the applicant that there had been shortcomings in the investigation into his allegations and in the criminal trial.

The Court found, therefore, that no effective remedy had been provided in respect of the applicant's Convention complaints, and thereby access to any other available remedies, including a claim for compensation, had also been denied. The Court therefore held unanimously that there had been a violation of Article 13.

Article 14 in conjunction with Articles 2, 3 and 6

Considering its findings of a violation of Articles 3 and 13, the Court did not consider that it was necessary also to consider these complaints in conjunction with Article 14.

Judge Mularoni expressed a partly dissenting opinion, which is annexed to the judgment.

***

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court's judgments.

[1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

[2] This summary by the Registry does not bind the Court.